Arveson v. Boston Coal Dock & Wharf Company
| Decision Date | 15 January 1915 |
| Docket Number | 18,844 - (103) |
| Citation | 150 N.W. 810,128 Minn. 178 |
| Parties | GEORGE ARVESON v. BOSTON COAL DOCK & WHARF COMPANY and Others |
| Court | Minnesota Supreme Court |
Action in the district court for St. Louis county to recover $21,000 for personal injuries received while in the employ of defendant company. The case was tried before Cant, J., and a jury which returned a verdict for $11,000. From an order denying defendants' motion for judgment notwithstanding the verdict or for a new trial, they appealed. Affirmed.
Facts -- injury to servant.
1. Defendant company operated an unloading rig to unload coal from vessels to its dock. The two other defendants were hoisters and operated the machinery. Plaintiff was an oiler. It was extremely dangerous to oil the machinery when it was in motion. When plaintiff went upon the rig to oil, it was his custom to notify the hoisters, and it then became part of their business to keep the rig safe by keeping all machinery inoperative as long as plaintiff was on the rig and until he gave them a signal that he was through. On the occasion in question plaintiff went on the rig to oil when the machinery was not in motion. There is evidence that he notified the hoisters. Nevertheless one of the hoisters started the machinery while plaintiff was upon the rig, without receiving his signal, and plaintiff was injured.
Master's duty to provide safe place to work -- enforcement of rules.
2. One of the absolute duties of the master is to use reasonable care to provide a safe place to work. This duty is not violated where the unsafety is caused by acts of co-servants in carrying out the details of the work. The master may adopt rules to facilitate the carrying on of his business, and these rules may operate for the protection of servants exposed to dangers. The question then arises whether the enforcement of such rules is an absolute duty of the master.
Master's duty to enforce certain rules.
3. It is not the absolute duty of the master to see that every rule of his business is observed. His obligation in respect to mere details of the work is not rendered more extensive by the mere fact that he has systematized those details by adopting rules. If, however, the office of the rule is to provide a method for the discharge of some nondelegable duty of the master, then his duty to see that the rule is observed is absolute and nondelegable.
Master's duty to enforce certain rules -- enforcement of rule to control independent work.
4. Where the servant is required to work in a place which is necessarily rendered dangerous by the doing of some independent work of the master, then the master is required to control such independent work while the servant is so engaged. If he adopt rules or sanction customs designed to effect this end, it is his duty to see that such rules or customs are observed, and he is liable for the negligent failure of those charged with that duty. It is held that the hoisters were vice principals, and defendant company is liable for their negligence.
Damages not excessive.
5. The damages are not excessive.
Abbott MacPherran, Lewis & Gilbert and Washburn, Bailey & Mitchell for appellants.
John Jenswold and C. R. Magney, for respondent.
1. Defendant coal company operates a coal dock at Duluth. Coal is unloaded from vessels to the dock by means of hoisting rigs. The one of these with which we are concerned is a movable steel structure about 40 feet high and 350 feet long. The essential features of this rig are as follows: A carriage 8 feet long runs on a track the whole length of the rig at a level of 30 feet or more above the floor of the dock. From this carriage is suspended the receptacle by means of which coal is unloaded. A walk runs alongside this carriage track for the full length of the rig. At a little lower level is a hoist house, 10 feet square, with a tin roof and walls of a single thickness of boards. The roof of the hoist house is on a level with the walk that runs alongside the carriage track. A ladder extends up the side of the hoist house; by this the employees ascend to the tin roof and thence proceed to the walk alongside the carriage track.
In the hoist house were located defendants Olson and Peterson, the hoisters, who operated from there the machinery that moves the rig and the carriage. Plaintiff was an oiler. It was his duty to oil the carriages and other mechanism of six rigs. The oiler determines when oiling is to be done. The work is not particularly dangerous as long as the machinery is not in motion, but a movement of the carriage while the oiler is upon it means almost certain death or serious injury. For this reason the regulations governing the hoisters are very explicit. After the oiler gives notice to the hoisters that he is going to oil, and goes out on the rig for that purpose, it is an invariable custom that the carriage must not be moved until the oiler gives a signal that he is through. It is the business of the hoisters to see to that. It is part of the duty for which they are hired, to keep the rig safe by keeping all machinery inoperative while the oiler is out upon the rig. Three sides of the hoist house are of glass, so that the hoisters may look out upon the rig for that purpose.
On the occasion in question and while the rig was not in operation, plaintiff came upon it to oil. As he did so he passed Olson who was standing just outside the hoist-house door. Plaintiff testified he told Olson as he passed that he was going to oil the carriage. Peterson was just inside the door, and within hearing. Plaintiff then went up the ladder on the side of the thin wall of the hoist house and walked along the tin roof over Peterson's head to the work of oiling the rig. While he was oiling the carriage, Peterson started it up, and caused the injury to plaintiff of which he complains.
The court instructed the jury that the negligence of Olson or of Peterson would be considered the negligence of the company; that, if Olson alone was negligent, plaintiff could recover against Olson and the company, and if Peterson was also negligent, recovery might be had against him. The jury found against all defendants.
There is little difficulty in sustaining the finding that Olson was negligent in not seeing to it that the carriage was not moved. We think there is also evidence to sustain a finding that Peterson knew plaintiff was going up to oil the carriage and that Peterson also was negligent. Peterson admitted that he was near enough to hear, at the time of the conversation between plaintiff and Olson, and on cross-examination admitted "It might be I heard something, but I can't remember." The jury might find that he did hear what was said and also that he must have heard plaintiff walk up the ladder outside this thin wall of the shanty and across the tin roof above his head. He may have forgotten, but this in no measure lessened his duty.
While the evidence seems sufficient to establish this fact of knowledge on the part of Peterson, we do not deem this vital to the case. We think the evidence is substantially undisputed that, under such conditions as existed here, it was not customary or necessary for the oiler to notify more than one of the hoisters, and that the duty to protect him then devolved on the one so notified. Plaintiff, Olson and Peterson all testified unequivocally to this fact. Only one other witness testified on the subject, the company's superintendent, Mr. Carr, who was called as an adverse witness by plaintiff. He repeatedly testified as did the other witnesses. Upon being pressed on cross-examination, however, he said that if the hoisters are not together it is the duty of the oiler to notify both of them. But he made it clear that this applies to the cases that sometimes arise where there is "one man on one end of the bridge and one man on the other; then both of them got to be notified," or where one hoister "throws in the clutches" while the other is turning on steam, and the two are some distance apart; but referring to this case he said: "Both men are in the same place there," and they were but a few feet apart. Under such circumstances as existed here, the obligation of either one who was notified was as imperative as that of both could be, and, if the defendant was bound by the default of both, it was likewise bound by the default of either one.
2. This brings us to the more difficult question, whether the company was answerable for the neglect of these men. As a rule a master is not bound to indemnify his servant for injuries caused by the negligence of a fellow servant in the same common employment. This familiar doctrine was first introduced in England in 1837, in Priestley v. Fowler, 3 M. & W. 1, where a butcher's servant was held to have no cause of action against the master for the breaking down of a van due to overloading by another servant with whom he was riding. The doctrine was first introduced in the United States in 1841, in Murray v. S.C. Railroad Co. 1 McMullan (S.C.) 385 (49), where plaintiff, a fireman, was injured by the derailment of an engine due to the negligence of the engineer whom plaintiff had selected as his associate, and whom plaintiff had warned of the danger. The...
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